4.3Personal Jurisdiction

A court’s assumption of subject matter jurisdiction should be distinguished from the court’s exercise of jurisdiction over the child (personal jurisdiction). Subject matter jurisdiction is a court’s authority to exercise judicial power over a particular class of cases (e.g., child protection cases). In re AMB, 248 Mich App 144, 166 (2001). However, personal jurisdiction may be exercised only after the court makes a determination regarding the specific facts of a case. In re Brock, 442 Mich 101, 108-109 (1993). The petition to initiate a child protective proceeding must contain “[a] citation to the section of the Juvenile Code relied on for jurisdiction.” MCR 3.961(B)(4).

In protective proceedings, jurisdiction cannot be conferred on the Family Division by consent of the parties. In re Youmans, 156 Mich App 679, 684 (1986). Rather, jurisdiction over the child may be established only after parties have received proper notice¹ and the finder of fact determines that the child comes within the court’s jurisdiction under MCL 712A.2(b). MCL 712A.18(1); MCR 3.972(E); In re Youmans, 156 Mich App at 684-685. However, the petitioner cannot create the circumstances that vest the court with jurisdiction. In re B & J, 279 Mich App 12, 19-20 (2008) (the DHHS could not seek termination of parental rights of illegal immigrant parents based upon the parents’ absence from the state when the parents were deported after the DHHS reported the illegal immigrant parents to the United States Immigration and Customs Enforcement (ICE)).

A determination that the Family Division has jurisdiction over the child under MCL 712A.2(b) is made in one of two ways: following a parent’s plea to the allegations in a jurisdictional petition, or a demand for trial by bench or jury to contest the allegations.² In re Thompson, 318 Mich App 375, 378 (2016). See also MCL 712A.18(1); In re Brock, 442 Mich at 108-109. MCR 3.903(A)(27), which defines trial as “the fact-finding adjudication of an authorized petition to determine if the minor comes within the jurisdiction of the court[, and] also . . . a specific adjudication of a parent’s unfitness to determine whether the parent is subject to the dispositional authority of the court.” “An adjudication finding that the court may take jurisdiction over a minor child does not involve an order authorizing any specific consequences for the respondent.”In re Wangler, 305 Mich App 438, 445 (2014), rev’d on other grounds 498 Mich 911 (2015).³

“In order to have an initial disposition, there must first be an adjudication.”⁴ In re Thompson, 318 Mich App at 378 (where “the circuit court conducted only a termination hearing and considered jurisdiction as an afterthought” by “[taking] evidence in one sitting and reach[ing] a termination decision before considering whether jurisdiction was appropriate,” the Court of Appeals “vacate[d] the adjudicative and termination orders and remand[ed] to the circuit court to handle the[] proceedings in the manner and order dictated by law”). Once the court establishes personal jurisdiction over a child, it may enter a dispositional order. MCL 712A.18(1); MCR 3.973(A). “The dispositional phase of the proceedings concerns the consequences arising from the fact of the adjudication[, and d]uring the dispositional phase of the proceedings, the court can order placement of a minor child, visitation, services, or any other specific action involving the respondent and the minor child that is under the court’s jurisdiction.”In re Wangler, 305 Mich App at 445. See Chapter 13 for a detailed discussion of the dispositional phase.

“[C]ourts may assume jurisdiction over a child on the basis of the adjudication of one parent.”⁵ In re Sanders, 495 Mich 394, 412-413 n 8 (2014). However, “[a]djudication protects the parents’ fundamental right to direct the care, custody, and control of their children, while also ensuring that the state can protect the health and safety of the children.” Id. at 422. Accordingly, “[w]hen the state is concerned that neither parent should be entrusted with the care and custody of their children, the state has the authority—and the responsibility—to protect the children’s safety and well-being by seeking an adjudication against both parents.” In re Sanders, 495 Mich at 421-22 (2014). “[W]hen the state seeks only to deprive one parent of the right to care, custody[,] and control, the state is only required to adjudicate that parent.” Id. at 422. “In re Sanders is a shield to protect the rights of a nonadjudicated parent, not a sword to pierce the rights of an adjudicated parent or child.” In re Detmer/Beaudry, 321 Mich App 49, 61-62, 64-65 (2017) (where a Native American child was removed from the respondent-mother’s care and residence and placed in the care and residence of the child’s nonrespondent-father, the trial court correctly found that it did not have the authority to infringe on the nonrespondent-father’s parental rights, but erred in concluding that the provisions of the MIFPA did not apply to the placement; “[n]either the holding nor the reasoning of In re Sanders negates or otherwise undermines the statutory requirements a trial court must follow before removing a Native American child from an adjudicated parent”).⁶

“[T]he fact that there are statutory grounds to assume jurisdiction over one minor child does not automatically mean that there are statutory grounds to assume jurisdiction over a second minor child.” In re Kellogg, 331 Mich App 249, 254 (2020). See also In re Christie, 339 Mich App 1, 6 (2021) (holding that statutory grounds for jurisdiction over the respondent-mother’s three-year-old son, who remained in her custody following the death of her daughter, did not establish jurisdiction over the respondent-mother’s two teen-aged sons who were not in her custody and who did not otherwise fall within the statutory requirements for jurisdiction). In addition, the doctrine of anticipatory neglect⁷ may not be sufficient in all cases to assume jurisdiction over a second minor child. Kellogg, 331 Mich App at 259; Christie, 339 Mich App at 6.

After it is determined that the child is within the court’s jurisdiction under MCL 712A.2(b), the court has the authority to conduct a hearing to determine whether parental rights to the child should be terminated. See MCL 712A.19b; MCR 3.973(A); MCR 3.977(E)(2); In re Taurus F, 415 Mich 512, 526-527 (1982).

If the court finds that a child is within its jurisdiction, the court also has the authority to enter orders concerning the child’s parents and other adults. But see In re Sanders, 495 Mich 394, 414 n 10 (2014), finding that “the court’s authority during the dispositional phase is limited by the fact that the state must overcome the presumption of parental fitness by proving the allegations in the [child protective] petition.” “[N]either the admissions made by [the adjudicated parent] nor [the unadjudicated parent’s] failure to object to those admissions constituted an adjudication of [the unadjudicated parent’s] fitness[.]” In re SJ Temples, unpublished per curiam opinion of the Court of Appeals, issued March 12, 2015 (Docket No. 323246)⁸ (finding that the trial court violated the unadjudicated parent’s “due process rights by subjecting him to dispositional orders without first adjudicating him as unfit[]”). See Section 4.10 for a discussion of this authority.

Additionally, “[i]n a proceeding under [the Juvenile Code] concerning a juvenile’s care and supervision, the court may [no longer] issue orders affecting a party as necessary[.]” See MCL 712A.2(i). For purposes of child protective proceedings, MCL 712A.2(i)(ii) defines party as “the petitioner, department, child, respondent, parent, guardian, or legal custodian, and any licensed child caring institution or child placing agency under contract with the department to provide for a juvenile’s care and supervision.”

A.Statutory Bases of Personal Jurisdiction

To establish personal jurisdiction, the court must determine by a preponderance of the evidence that a child comes within the statutory requirements of MCL 712A.2(b). In re Brock, 442 Mich at 108-109. “MCL 712A.2 ‘speaks in the present tense, and, therefore, the trial court must examine the child’s situation at the time the petition was filed.’” In re Long, 326 Mich App 455, 459 (2018), quoting In re MU, 264 Mich App 270, 279 (2004). See also In re Hockett, 339 Mich App 250, 256 (2021), where the Court determined that jurisdiction over a child was proper even though any threat to the child’s well-being had ceased after the child was placed in a residential facility at which the child’s mental health needs could be addressed.

MCL 712A.2(b) provides the Family Division with personal jurisdiction over a child under 18 years of age if the child is found within the court’s county and one of the following apply:⁹

(1) A child’s parent or other person legally responsible for the child’s care and maintenance (when able to do so) neglects or refuses to provide proper or necessary support, education,¹⁰ medical, surgical, or other care necessary for the child’s health or morals, MCL 712A.2(b)(1);

Note: MCL 712A.2(b)(1)(A) defines education as “learning based on an organized educational program that is appropriate, given the age, intelligence, ability, and psychological limitations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writing, and English grammar.” Also, proper home schooling may satisfy the requirements for an educational program sufficient to avoid an allegation of educational neglect. See MCL 380.1561(3)(f).

For purposes of MCL 712A.2(b)(1), neglect means “harm to a child’s health or welfare by a person responsible for the child’s health or welfare that occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, though financially able to do so, or the failure to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care.” MCL 712A.2(b)(1)(B); MCL 722.602(1)(d).

“[T]here must be a showing of harm in order for a court to assume jurisdiction over a juvenile under the ‘neglects’ clause of MCL 712A.2(b)(1).” In re Smith, 507 Mich 905 (2021) (determining that where a child “was performing at grade level,” a teacher’s testimony “that she feared [the minor] would not be able to maintain his academic level in the future” was only speculative and did not constitute a preponderance of evidence showing that the minor suffered any harm as a result of his absences from school).

(2) A child is exposed to a substantial risk of harm to his or her mental well-being, MCL 712A.2(b)(1);

(3) A child is abandoned by his or her parents, guardian,¹¹ or other custodian,¹² MCL 712A.2(b)(1);

(4) A child is without proper custody or guardianship, MCL 712A.2(b)(1);

Note: “‘Without proper custody or guardianship’ does not mean a parent has placed the [child] with another person who is legally responsible for the care and maintenance of the [child] and who is able to and does provide the [child] with proper care and maintenance.” MCL 712A.2(b)(1)(C).

(5) A child’s home or environment is an unfit place for the child to live due to neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, MCL 712A.2(b)(2);¹³ 

Note: For purposes of MCL 712A.2(b)(2), neglect means “harm to a child’s health or welfare by a person responsible for the child’s health or welfare that occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, though financially able to do so, or the failure to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care.” MCL 712A.2(b)(2); MCL 722.602(1)(d).

A nonparent adult is a person 18 years old or older who, regardless of the person’s domicile, meets all of the following criteria in relation to a child over whom the court takes jurisdiction under MCL 712A.2(b): (1) The person has substantial and regular contact with the child; (2) The person has a close personal relationship with the child’s parent or with a “person responsible for the child’s health or welfare”; and (3) The person is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree. MCL 712A.13a(1)(h)(i)-(iii); MCR 3.903(C)(7)(a)-(c).

(6) The child “is dependent and in danger of substantial physical or psychological harm[,]” MCL 712A.2(b)(3);¹⁴

Note: A child “may be found to be dependent when any of the following occurs:

(A) [The child] is homeless or not domiciled with a parent or other legally responsible person.

(B) [The child] has repeatedly run away from home and is beyond the control of a parent or other legally responsible person.

(C) [The child] is alleged to have committed a commercial sexual activity as that term is defined in . . . MCL 750.462a[,] or a delinquent act that is the result of force, fraud, coercion, or manipulation exercised by a parent or other adult.

(D) [The child’s] custodial parent or legally responsible person has died or has become permanently incapacitated and no appropriate parent or legally responsible person is willing and able to provide care for the [child].” MCL 712A.2(b)(3)(A)-(D).

(7) A child’s parent substantially failed, without good cause, to comply with a limited guardianship placement plan described in MCL 700.5205 regarding the child, MCL 712A.2(b)(4); or

(8) A child’s parent substantially failed, without good cause, to comply with a court-structured guardianship placement plan described in MCL 700.5207 or MCL 700.5209 regarding the child, MCL 712A.2(b)(5).

In addition, MCL 712A.2(b)(6) provides the Family Division with personal jurisdiction over a child under 18 years of age if the child has a guardian under the Estates and Protected Individuals Code (EPIC) and the child’s parent¹⁵ meets both of the following criteria:

(1) The parent failed to provide regular and substantial support for the child for two or more years despite having the ability to support the child, or the parent failed to substantially comply with a support order for two or more years; and

(2) Without good cause, the parent, having the ability to do so, regularly and substantially failed to visit, contact, or communicate with the child for two or more years.

Note: For purposes of MCL 712A.2(b)(6), neglect means “harm to a child’s health or welfare by a person responsible for the child’s health or welfare that occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, though financially able to do so, or the failure to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care.” MCL 712A.2(b)(6)(A)-(B); MCL 722.602(1)(d).

1.Neglect: Failure or Refusal to Provide Support or Care

The following cases construe that portion of MCL 712A.2(b)(1) that allows for assumption of jurisdiction when a parent or other person legally responsible for the care and maintenance of a child is able to provide proper or necessary support or care and neglects¹⁶ or refuses to do so. See In re Sterling, 162 Mich App 328, 338–339 (1987), for an explanation of the importance of the phrase “when able to do so.” According to the Sterling Court:

“[I]t is clear that the culpability implied in the term ‘when able to do so’ refers only to the failure-to-provide-support type of neglect . . . and cannot reasonably be applied to the unfit-home type of neglect.” In re Sterling, 162 Mich App at 339.

•In re Nash, 165 Mich App 450, 454-456 (1987): where the parent appeared to be intoxicated during visits by social workers, threatened the children, and failed to provide adequate food, where the children had been previously made temporary wards for educational neglect, and where one child showed symptoms of drug withdrawal soon after birth, the trial court properly found that sufficient evidence was presented to support taking jurisdiction of the children.

•In re Adrianson, 105 Mich App 300, 311-315 (1981), abrogated on other grounds by In re Gazella, 264 Mich App 668 (2005), superseded in part on other grounds by In re Hansen, 285 Mich App 158 (2009), vacated 486 Mich 1037 (2010):¹⁷ where the parent failed to provide adequate medical care, the children had poor school attendance, and the parent was incarcerated for a short period, the trial court properly took jurisdiction; however, allegations that there was debris on the front porch and that the parent had a personality conflict with one child were insufficient by themselves to establish jurisdiction.

•In re Franzel, 24 Mich App 371, 373-375 (1970): where the mother showed a marked preference for her older child, which led to her failure to meet the physical and emotional needs of the younger child, the evidence was sufficient to find the younger child within the court’s jurisdiction.

2.Emotional Neglect: Risk of Harm to a Child’s Mental Well-Being

The following cases construe that part of MCL 712A.2(b)(1) that allows the court to take jurisdiction over a child who is “subject to substantial risk of harm to his or her mental well-being.”

•In re A C Leach, ___ Mich App ___, ___ (2023): the trial court properly refused to take jurisdiction over the respondent-father’s two children, JSL and AL, when there was no evidence that the respondent-father posed a substantial risk of harm to the children’s mental well-being. At the time the petition was filed against the respondent-father seeking termination of his parental rights to the children, JSL and AL lived in a safe and stable home with their mother, and the respondent-father was in jail facing a first-degree child abuse charge for his treatment of JSL, the younger sibling. Although “the fact of incarceration, plus the child’s safe placement with another parent, does not eliminate the possibility of mental or emotional harm to a child victimized by the incarcerated person,” there is no “bright-line rule requiring a finding of a substantial risk of harm to the child’s mental well-being anytime the respondent is charged with violent-conduct against the child.” In A C Leach, “the petition lacked any factual allegations that either child—at the time the petition was filed—faced a ‘substantial risk of harm to his or her mental well-being,’” quoting MCL 712A.2b(1) (emphasis added). The A C Leach Court noted, however, that the “respondent-father’s continued incarceration and the children’s safe placement with their mother [did not] necessarily require[] denial of the petition[.]”

•In re Kellogg, 331 Mich App 249, 254-258 (2020): on the basis of the same evidence, the lower court took jurisdiction over respondent’s two minor children, and respondent appealed the decision only as to the younger child, who was then three years old. After its review of the evidence, the Court of Appeals found no independent basis to support the lower court’s findings as they related to the younger child. Respondent’s difficulty with stress, her 10-year-old negative psychological assessment, and her current trouble with anxiety and depression did not rise to the level of establishing that she was unfit to parent her younger child, particularly when it was unknown how removal of her older child, who was the source of significant stress in the home, might affect her ability to parent the younger child. Other circumstances—respondent’s failure to consistently take the younger child to “school” for his speech delay when there was no indication that she was required to take him there, and respondent’s occasional yelling and swearing at the child, standing over him, and invading his personal space—also failed to establish a substantial risk of harm to the younger child’s mental well-being.

•In re SR, 229 Mich App 310, 315 (1998): after the father attempted to kill the child and commit suicide, he was found guilty of second-degree child abuse and sentenced to prison. The Court of Appeals held that the lower court erred in refusing to assume jurisdiction on the basis of a substantial risk of harm to the child’s mental well-being. The Court stated that the parent’s incarceration did not eliminate the emotional impact on the child of the previous events.

•In re Middleton, 198 Mich App 197, 199-200 (1993): the mother was developmentally disabled and under plenary guardianship. Under the Mental Health Code, a plenary guardian may be appointed only where a court finds “‘by clear and convincing evidence that the respondent is developmentally disabled and is totally without capacity to care for himself or herself . . . .’” The Court of Appeals held that, in such circumstances, the mother’s status, by itself, gave rise to the presumption that her newborn daughter was both at “‘substantial risk of harm to . . . her mental well-being’” and “‘without proper custody or guardianship.’”

•In re Arntz, 125 Mich App 634, 636-638 (1983), rev’d on other grounds 418 Mich 941 (1984):¹⁸ in 1979, the respondent placed her two children with their paternal grandparents and had the grandparents appointed as legal guardians. In 1981, respondent dissolved the guardianship and attempted to have her children returned to her. The Department of Health and Human Services (DHHS) then filed a child protective proceedings action against respondent, alleging emotional neglect.¹⁹ The Court of Appeals found that the assumption of jurisdiction was proper because the mother’s failure to visit frequently during the guardianship temporarily deprived the children of emotional well-being. See also In re Mathers, 371 Mich 516, 527–529 (1963) (failure of parents to visit for one year or provide support was sufficient to establish jurisdiction).

•In re Kurzawa, 95 Mich App 346, 354-357 (1980), receded from in part on other grounds by In re Riffe, 147 Mich App 658 (1985): the petitioner alleged that respondents’ five-year-old child was deprived of his emotional well-being by the parents’ failure to control the child’s violent and antisocial behavior. The Court of Appeals found that the allegation did not constitute neglect, as the court below based its assumption of jurisdiction on the behavioral problems and treatment needs of the child rather than on the parents’ culpability in failing to provide for the emotional well-being of the child.

3.Abandonment

The following cases construe that portion of MCL 712A.2(b)(1) that allows the court to take jurisdiction over a child who is abandoned by his or her parents.

•In re Nelson, 190 Mich App 237, 240-241 (1991): the Court found that the mother’s leaving the child with a grandparent without providing monetary support was insufficient to allow assumption of jurisdiction. Instead, placing a child with a relative who will provide proper care evidences concern for the child’s welfare.²⁰

•In re Youmans, 156 Mich App 679, 685 n 2 (1986): a mother’s statement that she had left home and would not return was insufficient to establish abandonment by both parents, as there was no evidence presented that the father would be unable to care for the children.

4.Without Proper Custody or Guardianship

Placement of a child by a parent with another person who is legally responsible for the care and maintenance of the child and who provides the child with proper care and maintenance does not establish that the child is “without proper custody or guardianship.” MCL 712A.2(b)(1)(C). Such placement is often in the home of a relative. See In re Nelson, 190 Mich App 237, 241 (1991); In re Ward, 104 Mich App 354, 358-360 (1981); In re Curry, 113 Mich App 821, 823–826 (1982).

The following cases construe that portion of MCL 712A.2(b)(1) that allows the court to take jurisdiction over a child who is determined to be “without proper custody or guardianship.”

•In re Baham, 331 Mich App 737, 749-750 (2020): Jurisdiction was proper despite the fact that the child was placed with the respondent’s brother at the time she entered her plea of admission where the child was in the hospital at the time the petition was filed, “[a]nd, although respondent had been discussing arrangements for [the child’s] care with a pregnancy counselor, respondent did not implement any of the potential plans prior to the filing of the petition,” and respondent admitted during testimony at the termination hearing that she thought care for the child would be accomplished through a guardianship but that “something happened and the guardianship wasn’t done,” and “[n]o guardianship was ever established, either before or after the adjudication hearing was held.”

•In re Systma, 197 Mich App 453, 454-457 (1992): respondent-father had not kept in contact with his children for several years after respondent’s divorce from the children’s mother. The mother became very ill and was admitted into a hospital. Because the respondent was in prison at the time, the mother contacted the DHHS and voluntarily placed the children in foster care. The DHHS temporarily placed the children with relatives until the mother died two weeks later. The DHHS then filed a petition in juvenile court, asking for jurisdiction on the ground that the children were “without proper custody or guardianship.” The children had no legal guardian at the time their mother died and there were indications that “relatives were either unwilling or unable to care for [the children].” The Court of Appeals affirmed the granting of jurisdiction, and held that although temporary placement with a relative is “proper custody,” it is only so when the custodial parent placed the children with the relative. Because the children were without proper custody or guardianship when the mother died, the father could not argue that the court was without jurisdiction.

•In re Webster, 170 Mich App 100, 105-106 (1988): the DHHS filed a neglect petition against respondent, an unwed mother, alleging that respondent’s one-year-old child was “without proper custody or guardianship.” On the same date that the petition was filed, respondent executed a power of attorney delegating her parental powers to the natural father of the child. The natural father had lived with the mother and their child since the child’s birth but had not acknowledged paternity. The Court of Appeals affirmed the Probate Court’s assumption of jurisdiction, holding that the execution of the power of attorney did nothing to change the child’s environment, and that the child was still “without proper custody or guardianship.”

•In re Hurlbut, 154 Mich App 417, 421-422 (1986): respondent-father, who was serving a life sentence in prison for first-degree murder, appealed the termination of his parental rights to a three-year-old child, whom he had never seen. Respondent argued that the Probate Court improperly assumed jurisdiction after the child’s mother died because the mother had named a testamentary guardian in her will. Therefore, the respondent argued, the child was not “without proper custody or guardianship” at the time of the mother’s death. The Court of Appeals disagreed, holding that no proper guardianship was established, as a testamentary guardianship requires both parents to be deceased or the surviving parent to be legally incapacitated, and the named guardians did not petition for full guardianship prior to the termination hearing.

•In re Pasco, 150 Mich App 816, 822-823 (1986): where the mother abandoned her seriously ill infant in a hospital and three months later suggested that the child’s grandmother care for the infant during the day while the mother attended school, the court did not err in taking jurisdiction of the child.

•In re Ernst, 130 Mich App 657, 662-664 (1983): where the parent failed to make specific arrangements regarding the child’s care, or to maintain contact with or be accessible to the grandparent with whom the child was placed, the court did not err in taking jurisdiction over the child.

5.Unfit Home Environment

The following cases construe MCL 712A.2(b)(2), which allows for assumption of jurisdiction if the child’s home is an unfit place to live.

•In re Sluiter, ___ Mich App ___, ___ (2024): “[L]ooking at the evidence in the light most favorable to the petitioner [the DHHS] and deferring to the jury in determining what evidence is to be believed and the weight to be attached to the evidence, [the Court of Appeals] conclude[d] that there was sufficient evidence to support the jury’s conclusion that a preponderance of the evidence established jurisdiction over the minor child as to respondent[-father].” “The testimony presented regarding respondent[-father]’s abuse of respondent-mother, even if not witnessed by [the child], nevertheless reflect[ed] cruelty, criminality, and depravity on respondent[-father]’s part, thus providing an unfit place for [the child] to live.” Id. at ___.

•In re Hockett, 339 Mich App 250, 255-256 (2021): Jurisdiction over a child is proper under MCL 712A.2(b)(2) when the child’s home is unfit for the child. Although “[u]nfitness connotes active wrong doing,” a respondent need not be culpable in order for a court to exercise jurisdiction over a child under MCL 712A.2(b)(2). Hockett, 339 Mich App at 255. In other words, “‘culpability is not a prerequisite for court intervention under [MCL 712A.2(b)(2)].’” Hockett, 339 Mich App at 256, quoting In re Jacobs, 433 Mich 24, 41 (1989). In Hockett, jurisdiction was proper even though the respondent was not unwilling to provide a fit environment for her child; rather, respondent was unable “to care for [her child’s] special needs with the level of assistance she was receiving[.]” Hockett, 339 Mich App at 256.

• In re Kellogg, 331 Mich App 249, 257-258 (2020): “Wholly missing from the record [was] any testimony indicating that the lack of structure and routine and the inconsistent application of rules was actually having a negative impact on [the child’s] health or mental well-being or that it was creating an unfit home environment for him under MCL 712A.2(b)(2). There was, however, testimony that respondent had “some difficulties managing [the child’s] wants and controlling him,” but jurisdiction under MCL 712A.2(b)(1) and (2) “require[s] more than ‘some difficulty[.]’” Kellogg, 331 Mich App at 258.

•In re Long, 326 Mich App 455, 462 (2018): where “[a]t the time the petition was filed, it [was] undisputed that [the child] was living with petitioner[-guardian] and not with respondent-father, . . . [and] there were no allegations made that petitioner’s home was an unfit place for [the child] to live,” the trial court erred in taking jurisdiction of the child.

•In re MU, 264 Mich App 270, 279 (2004): where the father was suspected of murdering his wife, the mother of their two children, but had not been charged with or convicted of the murder at the time a petition was filed in a child protective proceeding, the trial court erred in not taking jurisdiction of the children. The Court of Appeals held that a criminal conviction was not a prerequisite to the court’s assumption of jurisdiction on grounds that a parent’s criminality renders a child’s home environment unfit.

Note: In In re MU, the respondent-father also argued that a finding of criminality based upon the death of the children’s mother, in the absence of a criminal conviction, violated his due process rights. The trial court agreed with the respondent-father and prohibited the petitioner from introducing evidence of the alleged murder at the trial. On appeal, the Court of Appeals indicated that during the adjudicative phase of child protective proceedings, the parent’s liberty interest at stake is the interest in managing his children and the governmental interest at stake is the children’s welfare. The Court of Appeals overturned the trial court’s findings and stated:

“Rather than appropriately balancing the factors stated in Mathews [v Eldridge, 424 US 319, 335 (1976)], the trial court focused on the harm the children would suffer if deprived of their father and the potential bias the respondent might incur in the subsequent criminal proceedings. As stated above, however, the children’s interest in maintaining a relationship with their father exists only to the extent that it would not be harmful to them. [In re] Brock, [442 Mich 101, 113 n 19 (1993)]. Their welfare is of the utmost importance in these proceedings, id. at 115, and due process is not offended by determining whether the trial court has jurisdiction to decide whether the relationship with their father should continue. Procedural due process seeks to protect the children from an erroneous termination of their relationship with their father, not a statutorily proper termination. See id. at 113.” In re MU, 264 Mich App at 282.

The Court of Appeals indicated that the trial court provided no specific reason for excluding evidence of the murder, suggesting only that evidence of the murder would violate the respondent’s due process rights. The Court of Appeals reversed and stated “whether the respondent killed [the children’s mother] is highly relevant to the issue whether ‘criminality’ renders the children’s home or environment unfit.” In re MU, 264 Mich App at 284.

•In re Brimer, 191 Mich App 401, 408 (1991): where the mother’s boyfriend’s physical and sexual abuse of the mother’s child rendered the home unfit, the trial court did not err in taking jurisdiction over the mother’s child.

•In re Miller (Julie), 182 Mich App 70, 74, 82 (1990): where the children’s mother returned to the home with the children from a domestic assault shelter after the father had beaten the children, and where neither parent sought needed medical attention for one child, the trial court did not err in taking jurisdiction of the children.

•In re Jacobs, 433 Mich 24, 40-42 (1989): where respondent-mother suffered a stroke that severely limited her ability to care for the children, and where the children’s father was caring for and living with his mother who was recovering from surgery, the trial court did not err in taking jurisdiction over the children.

•In re Brown (Abijah), 171 Mich App 674, 677-678 (1988): where the evidence showed that the respondent pleaded nolo contendere to the allegation that she beat one of her children with a belt, the trial court did not err in taking jurisdiction over all of respondent’s children on grounds that the respondent’s home was unfit.

•In re Youmans, 156 Mich App 679, 685 (1986): although the evidence showed that the home was dirty, that one child suffered severe diaper rash, and that one child got into a container of valium, the trial court erred in taking jurisdiction of the children, “[because] there [we]re no statements that respondents neglected or refused to provide proper or necessary support, education or medical care, that the children were deprived of emotional well-being or that respondents had abandoned them.”

•In re Curry, 113 Mich App 821, 827-830 (1982): where both parents were in prison, but where the children were in the custody of their grandparents, the parents’ criminality alone did not indicate that the grandparents’ home was unfit and therefore, the evidence presented was insufficient to support taking jurisdiction.

•People v Brown (Mae), 49 Mich App 358, 365 (1973): where the mother engaged in a lesbian relationship without evidence that the relationship rendered the children’s home environment unfit, the allegations were insufficient to establish jurisdiction.

B.Anticipatory Neglect or Abuse Sufficient for Jurisdiction

“In cases with multiple children, the doctrine of anticipatory neglect may apply to confer jurisdiction. The doctrine of anticipatory neglect recognizes that how a parent treats one child is certainly probative of how that parent may treat other children. Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect.” In re Sluiter, ___ Mich App ___, ___ (2024) (cleaned up) (applying the doctrine of anticipatory neglect when the child’s half-sibling disclosed to the CPS investigator—who testified at trial—that he saw respondent-father choking respondent-mother, even though no evidence directly indicated that the child witnessed respondent-father abusing respondent-mother). See also  In re Foster, 285 Mich App 630, 631 (2009) (conditions that existed at the time of previous adjudication were likely to continue during subsequent child’s presence in the parents’ home).;“[D]rug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect.” In re LaFrance, 306 Mich App 713, 731-732 (2014) (while the “respondents’ continued substance-abuse issues . . . heighten[ed] the risk that [they] might . . . fail to appreciate the special needs and vulnerabilities of their infant daughter[,] . . . no such special needs or vulnerabilities exist[ed] in relation to [their] three older children, . . . [and] the trial court erred by invoking anticipatory neglect to extend those concerns to them as well[]”).

The doctrine of anticipatory neglect or abuse is not limited to a parent abusing his or her own child. MCL 712A.19b(3)(b)(i); In re Jenks, 281 Mich App 514 (2008). The doctrine of anticipatory neglect applies to any individual whose abuse of a child’s sibling or half-sibling or step-sibling indicates that another related child is at risk of abuse by that same individual. Jenks, supra at 517 n 2. Specifically, MCL 712A.19b(3)(b)(i) “clarifi[es] that grounds for termination are established when the parent against whom termination is sought is responsible for the physical injury or physical or sexual abuse of a sibling of the minor child, regardless of whether that parent is also a parent of the injured or abused sibling.” Jenks, supra at 517 n 2. See also In re Powers (Kayla), 208 Mich App 582, 589-593 (1995) (even before MCL 712A.19b(3)(b)(i) was amended, the Court extended the doctrine of anticipatory neglect or abuse to a live-in boyfriend based on allegations that he was likely to abuse his daughter based on his past abuse of his girlfriend’s son, who was his daughter’s half-brother).

“[E]ven though jurisdiction may be properly assumed on the basis of the anticipatory-neglect doctrine, that does not also mean that it will always be sufficient.” In re Kellogg, 331 Mich App 249, 259 (2020), citing In re LaFrance Minors, 306 Mich App 713 (2014) (the probative value of the inference that a parent’s treatment of one child may indicate how that parent will treat other children decreases in light of differences between the children, like age and medical conditions). The substantial differences between the children in Kellogg—age, length of time in respondent’s care, history of trauma, mental-health disorders, and behavioral issues, for example—“severely decrease[d] the probative value of theanticipatory neglect doctrine,” so much so that it was not sufficient to establish statutory grounds for jurisdiction. In re Kellogg, 331 Mich App at 260.

“A court’s jurisdiction under MCL 712A.2(b) has two components, one pertaining to the child and the other primarily to the parent.” In re Christie, 339 Mich App 1, 4 (2021). “While the doctrine of anticipatory neglect may satisfy the parental-conduct component of the jurisdictional statute, it does not satisfy the geographic component relative to the child required by MCL 712A.2(b).” Christie, 339 Mich App at 6. In Christie, the trial court had proper  jurisdiction over the respondent-mother’s son after her daughter died while in her care. Id. at 6. The events leading to the death of respondent-mother’s daughter were not sufficient to permit the court to exercise jurisdiction over the respondent-mother’s two teenaged sons, who did not live with the respondent-mother in the county with jurisdiction over the child protective proceedings following the death of the respondent-mother’s daughter; in addition, no offense had been committed against the teenagers in the county with proper jurisdiction. Id. at 5. Further, jurisdiction was not proper under MCL 722.638, even though the statute “satisf[ied] the parental-conduct component of MCL 712A.2, it d[id] not indicate that the location of the life-threatening injury to one sibling[] overcomes the geographic component of the jurisdictional statute as it relates to other siblings.” Christie, 339 Mich App at 7. That is, without satisfaction of the relevant jurisdictional factors in MCL 712A.2, an injury that occurs to one sibling in one county does not give the court in that county jurisdiction over siblings living in a different county. Christie, 339 Mich App at 6, 7.

1.Unborn Child

Although the Family Division may not assert jurisdiction over an unborn child, the doctrine of anticipatory neglect or abuse may allow the court to assume jurisdiction of the infant immediately after he or she is born. In re Dittrick, 80 Mich App at 222-223. In In re Dittrick, the mother’s parental rights to her first child were terminated due to physical and sexual abuse. Just prior to the termination hearing, the mother became pregnant again, and the DHHS petitioned the court to take jurisdiction before the baby was born. The Court of Appeals found that the court could not assume jurisdiction over an unborn person, as it is not a child for purposes of MCL 712A.2(b).

2.Prenatal Treatment

Since a mother’s prenatal treatment is probative of how she will treat her child, the court may take jurisdiction over a newborn suffering from symptoms of narcotics withdrawal based on anticipatory neglect or abuse.²¹ In re Baby X, 97 Mich App at 116. In In re Baby X, the court assumed jurisdiction after a newborn began to exhibit symptoms of drug withdrawal within 24 hours of birth. The Court of Appeals found that the court could assume jurisdiction over the newborn. Specifically, the Court indicated that:

“Since prior treatment of one child can support neglect allegations regarding another child, we believe that prenatal treatment can be considered probative of a child’s neglect as well. [The Court] hold[s] that a newborn suffering narcotics withdrawal symptoms as a consequence of prenatal maternal drug addiction may properly be considered a neglected child within the jurisdiction of the probate court.” In re Baby X, 97 Mich App at 116.

C.Jurisdiction Over Child Once Allegations Adjudicated

Although “courts may assume jurisdiction over a child on the basis of the adjudication of one parent[,]” procedural “due process requires that every parent receive an adjudication hearing before the state can interfere with his or her parental rights.” In re Sanders, 495 Mich 394, 407, 412-413 n 8, 415, 422 (2014) (finding unconstitutional the one-parent doctrine, which permitted the court to “enter dispositional orders affecting parental rights of both parents” once “jurisdiction [was] established by adjudication of only one parent”).²² “[N]either the admissions made by [the adjudicated parent] nor [the unadjudicated parent’s] failure to object to those admissions constituted an adjudication of [the unadjudicated parent’s] fitness[.]” In re SJ Temples, unpublished per curiam opinion of the Court of Appeals, issued March 12, 2015 (Docket No. 323246)²³ (finding that the trial court violated the unadjudicated parent’s “due process rights by subjecting him to dispositional orders without first adjudicating him as unfit[]”).

For a discussion on the dispositional phase of child protective proceedings, see Chapter 13.

1.Jurisdiction Cannot Be Obtained Unless Trial Is Held or Respondent Tenders Valid Plea

The court does not obtain jurisdiction over a child under MCL 712A.2(b) unless a trial is held or the respondent tenders a valid plea to the allegations in a petition.²⁴ In re SLH, 277 Mich App 662, 671 (2008). In In re SLH, the petition alleged that the mother found the respondent sexually abusing one of their children and that the respondent admitted to her he was having sex with the child. At the pretrial hearing, the mother admitted to finding the respondent having sex with their child. In re SLH, supra at 664. Based on its conclusion that there was an implication that the mother failed to protect her children, the court accepted the mother’s plea and exercised jurisdiction over the children. Id. at 665. At the subsequent dispositional hearing, the court terminated the respondent-father’s parental rights. Id. at 667. The Court of Appeals set aside the order terminating the respondent-father’s parental rights because the trial court never obtained jurisdiction over the children. Id. at 674. Because the petition did not allege any wrongdoing on the mother’s part, the mother was not a respondent and could not enter a plea, and the court was without jurisdiction over the children or the respondent-father. Id. at 670-671.      

Additionally, where a petition contains no allegations against a mother, she cannot consent to the court’s jurisdiction over her children or plead to allegations in a petition against her husband. In re Bechard, 211 Mich App 155, 160-161 (1995). In In re Bechard, the petition alleged that the respondent-father sexually abused one of his children but contained no allegations against the children’s mother. At a preliminary inquiry, the father refused to enter a plea and requested an attorney. The mother then “consented to the court’s jurisdiction.” The court proceeded to conduct a dispositional hearing and terminated the respondent-father’s parental rights. In re Bechard, supra at 157-158. The Court of Appeals set aside the order terminating the respondent-father’s parental rights and remanded the case to the trial court for an adjudicative hearing. The Court of Appeals first rejected the petitioner’s argument that the father was barred from collaterally attacking the trial court’s adjudicative order, finding that no adjudicative order could have been entered since the trial court only conducted a preliminary inquiry before proceeding to the termination hearing. The Court of Appeals then found that the father was entitled to an adjudicative hearing on the petition. Because the petition contained no allegations against the mother, she could not “consent to the court’s jurisdiction” over the children or plead to the allegations in the petition. Id. at 160-161.

Jurisdiction over a respondent may be determined at a jury trial. In re Sluiter, ___ Mich App ___, ___ (2024). In Sluiter, jurisdiction over respondent-father was determined at a jury trial, and respondent challenged on appeal the sufficiency of the evidence to support the jury’s verdict. Id. at ___. The Court of Appeals rejected respondent’s arguments attacking the credibility of the trial witnesses, holding that “[t]he fundamental flaw in respondent’s arguments on appeal is that he focuses on what he believes the jury should have concluded rather than what the jury could have concluded. That is, respondent ignores the deference that courts give to the jury’s role in determining what evidence to believe and what weight to give that evidence.” Id. at ___. The Court affirmed the verdict in light of testimony “regarding respondent’s abuse of respondent-mother” that showed “a home where domestic violence repeatedly occurr[ed, a home that was] not a fit environment in which to raise a child.” Id. at ___, ___.

2.Procedural Due Process

“‘Parents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process.’” In re Sanders, 495 Mich 394, 409 (2014),²⁵ quoting In re JK, 468 Mich 202, 210 (2003). However, “[a] parent’s right to control the custody and care of [his or] her children is not absolute, as the state has a legitimate interest in protecting ‘the moral, emotional, mental, and physical welfare of the minor[,]’ and in some circumstances ‘neglectful parents may be separated from their children.’” In re Sanders, 495 Mich at 409-410, quoting Stanley v Illinois, 405 US 645, 652 (1972).

“[D]ue process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship.” In re Sanders, 495 Mich at 422. Accordingly, “all parents ‘are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.’”²⁶ In re Sanders, 495 Mich at 412, 422 (quoting Stanley, 405 US at 658, and concluding that the one-parent doctrine²⁷ violated the nonadjudicated parent’s constitutional due process rights “[b]ecause [it] allow[ed] the court to deprive a parent of th[e] fundamental right [to the care, custody and control of his or her children] without any finding that he or she [was] unfit”).²⁸ “[N]either the admissions made by [the adjudicated parent] nor [the unadjudicated parent’s] failure to object to those admissions constituted an adjudication of [the unadjudicated parent’s] fitness[.]” In re SJ Temples, unpublished per curiam opinion of the Court of Appeals, issued March 12, 2015 (Docket No. 323246)²⁹ (finding that the trial court violated the unadjudicated parent’s “due process rights by subjecting him to dispositional orders without first adjudicating him as unfit[]”).

A parent’s constitutional right to direct his or her child’s care and custody before the parent is adjudicated is not without limit; “[w]hen a child has been placed into care by an unchallenged order of the court, the state has a legitimate and important interest in protecting the child’s health and safety.” In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023). In Dixon, the trial court was permitted to continue the child’s placement in foster care until the DHHS could properly investigate placement of the child with a nonrelative as proposed by the child’s incarcerated father. Dixon, ___ Mich App at ___. If “vindication of an unadjudicated parent’s custodial right” would require the court to order a change in the child’s custody and would terminate the state’s custody of the child, the state’s interest in protecting the child’s health and safety permits it to continue the child’s temporary placement with foster parents while an investigation takes place to determine whether the new placement is appropriate. Id. at ___.

D.Termination of Jurisdiction

1.Child Reaches 18 Years of Age

The court’s ability to take jurisdiction over a child terminates once the child reaches the age of 19. MCL 712A.5. However, if the court has exercised personal jurisdiction over a child pursuant to MCL 712A.2(b) prior to the child’s 18th birthday, jurisdiction may continue until the child reaches age 20 unless the court terminates jurisdiction sooner. MCL 712A.2a(1).

Note: The term child is used to refer to a person alleged or found to be within the jurisdiction of the Family Division under MCL 712A.2(b). MCR 3.903(C)(3). The term minor may be used to describe a person over the age of 18 and over whom the court has continuing jurisdiction under MCL 712A.2a. MCR 3.903(A)(16). See also MCL 722.111(z)(iii).

If a child is placed in a foster home or foster care facility prior to his or her 18th birthday, that placement may continue after the child’s 18th birthday. MCL 722.111(1)(bb)(iii). If a child has been committed to the Michigan Children’s Institute (MCI), the child may remain a state ward until his or her 19th birthday. MCL 400.203(1).

“If the court has appointed a [juvenile] guardian under [MCL 712A.19a] or [MCL 712A.19c]^[30] for a youth age 16 or older, the court shall retain jurisdiction of the youth until the [DHHS] determines the youth’s^[31] eligibility to receive extended guardianship assistance under the young adult voluntary foster care act[ (YAVFCA)], . . . MCL 400.641 to [MCL] 400.671, that shall be completed within 120 days of the youth’s eighteenth birthday. If the [DHHS] determines the youth will receive extended guardianship assistance, the court shall retain jurisdiction of the youth until that youth no longer receives guardianship assistance.”³² MCL 712A.2a(4) (emphasis added). But see MCL 712A.19a(12), MCL 712A.19c(9), and MCR 3.979(C)(1)(a), which require the court’s jurisdiction over the child pursuant to MCL 712A.2(b) to terminate once the juvenile guardian is appointed and a review hearing is conducted under MCL 712A.19.³³

“Unless terminated by court order, the court’s jurisdiction over a juvenile guardianship ordered under MCL 712A.19a or MCL 712A.19c for a youth 16 years of age or older shall continue until 120 days after the youth’s eighteenth birthday.” MCR 3.979(C)(1)(b) (emphasis added). If the DHHS provides the court with notice that it is extending guardianship assistance to a youth beyond the age of 18 under MCL 400.665 (YAVFCA), the court must “retain jurisdiction over the guardianship until that youth no longer receives extended guardianship assistance.” MCR 3.979(C)(1)(b) (emphasis added). “Upon receipt of notice from the [DHHS] that it will not continue extended guardianship assistance, the court shall immediately terminate the juvenile guardianship.” MCR 3.979(D)(1)(c).

2.Termination of Parental Rights

If parental rights have been terminated, the court must continue to review the case while a child is in placement or under the jurisdiction, supervision, or control of the MCI. MCL 712A.19c(1), (14); MCR 3.978(A).

Note: A commitment to the DHHS is irrevocable. In re Keast, 278 Mich App 415, 421-422 (2008). Furthermore, once committed to the MCI, the MCI Superintendent is responsible for decisions regarding the child’s placement and care.³⁴ In re Keast, supra at 423. See the SCAO Publication, Conducting Effective Post-Termination Review Hearings, F(b), at https://www.courts.michigan.gov/4a4b0c/siteassets/educational-materials/cws/supplemental-handouts/cws-conductingeffectivepostterminationreviewhearings2008.pdf.

The court’s jurisdiction over the child protective proceeding may terminate once:

(1) the rights of the entity with legal custody are terminated and the child is placed for adoption;³⁵ or

(2) a juvenile guardian is appointed after a post-termination review hearing is held.³⁶ MCR 3.978(D)(1)-(2).

See also MCL 712A.19c(9), which requires the court’s jurisdiction over the child pursuant to MCL 712A.2(b) to terminate after a guardian is appointed and a review hearing is held under MCL 712A.19. But see MCL 712A.2a(4), which requires the court to retain its jurisdiction over a youth 16 years of age or older who was appointed a juvenile guardian under MCL 712A.19a or MCL 712A.19c³⁷ until the DHHS determines whether the youth³⁸ is eligible to receive extended guardianship assistance under MCL 400.641 (Young Adult Voluntary Foster Care Act (YAVFCA)).³⁹ If the DHHS determines the youth is eligible for extended guardianship assistance under the YAVFCA, the court must retain jurisdiction until the youth no longer receives the guardianship assistance.⁴⁰ MCL 712A.2a(4).

If a juvenile guardian is appointed, the court’s jurisdiction over the juvenile guardianship continues until released by court order. MCL 712A.19a(13); MCL 712A.19c(10); MCR 3.979(C)(1)(a). “Unless terminated by court order, the court’s jurisdiction over [the] juvenile guardianship ordered under MCL 712A.19a or MCL 712A.19c for a youth 16 years of age or older shall continue until 120 days after the youth’s eighteenth birthday.” MCR 3.979(C)(1)(b). If the DHHS provides the court with notice that it is extending guardianship assistance to a youth beyond the age of 18 under MCL 400.665 (Young Adult Voluntary Foster Care Act), the court must “retain jurisdiction over the guardianship until that youth no longer receives extended guardianship assistance.”⁴¹ MCR 3.979(C)(1)(b). “Upon receipt of notice from the [DHHS] that it will not continue extended guardianship assistance, the court shall immediately terminate the juvenile guardianship.” MCR 3.979(D)(1)(c).

3.Parental Deportation

A court should not continue its jurisdiction over a child after his or her parents are deported if doing so would constitute an improper de facto termination of parental rights. In re B & J, 279 Mich App 12, 22-24 (2008). In In re B & J, after the respondents were involuntarily deported and separated from their children, the trial court, because it retained jurisdiction over the children after the deportation, terminated the respondents’ parental rights based on the respondents’ failure to provide proper care or custody of the children. The result of the trial court’s continued jurisdiction was an improper de facto termination of respondents’ parental rights based only on the preponderance of the evidence necessary to support the court’s continued jurisdiction. Accordingly, the Court of Appeals held:

“If the family court had not continued to exercise jurisdiction over the children in this case, respondents would have been able to take the children with them to Guatemala, and there would have arisen no cause for termination of parental rights. However, the court’s continued exercise of jurisdiction made it all but certain that respondents would be permanently separated from their children and that respondents would become unable to provide proper care and custody. In other words, the family court’s continued exercise of jurisdiction—based only on a preponderance of the evidence—constituted a de facto termination of respondents’ parental rights. This de facto termination of parental rights, which was based on less than clear and convincing evidence of parental unfitness, violated respondents’ substantive due process rights. Under the unique and particular facts of this case, we conclude that the family court’s continued exercise of jurisdiction over the children was unconstitutional.” In re B & J, 279 Mich App at 23-24 (internal citations omitted).

E.Challenging a Court’s Exercise of Jurisdiction

1.Direct Appeal

“[T]he collateral bar rule generally prohibits a litigant from indirectly attacking a prior judgment in a later, separate action, unless the court that issued the prior judgment lacked jurisdiction over the person or subject matter in the first instance. Instead, the litigant must seek relief by reconsideration of the judgment from the issuing court or by direct appeal. . . . [However,] a child protective proceeding is a single continuous proceeding that begins with a petition, proceeds to an adjudication, and—unless the family has been reunified—ends with a determination of whether a respondent’s parental rights will be terminated” and “an appeal of an adjudication error in an appeal from an order terminating parental rights is not a collateral attack. The collateral-bar rule does not apply within one child protective case, barring some issues from review.” In re Ferranti, 504 Mich 1, 19 n 8, 23, 35 (2019) (citations and quotation marks omitted). According to the Ferranti Court, In re Hatcher, 443 Mich 426 (1993) “made a foundational mistake; it erroneously applied the rule from Jackson City Bank & Trust Co v Frederick, 271 Mich 538 (1935)—that a court’s exercise of jurisdiction cannot be collaterally attacked in a second proceeding—to what is a single, continual proceeding.” Ferranti, 504 Mich at 22. “Hatcher was not a collateral attack. It was a direct appeal of an (unpreserved) adjudicative error.”⁴² Ferranti, 504 Mich at 20 n 8. “[I]ssue preservation dictates the appellate standard of review; it does not transform direct review into collateral attack.” Id. at 25.

“If termination [of a parent’s parental rights] occurs at the initial disposition as a result of a request for termination contained in the original, or amended, petition for jurisdiction, then an attack on the adjudication is direct and not collateral, as long as the appeal is from an initial order of disposition containing both a finding that an adjudication was held and a finding that the children came within the jurisdiction of the court.’ In re SLH, 277 Mich App 662, 668-669 (2008).

“[A] Sanders⁴³ challenge, raised for the first time on direct appeal from an order of termination, does not constitute a collateral attack on jurisdiction, but rather a direct attack on the trial court’s exercise of its dispositional authority.” In re Kanjia, 308 Mich App 660, 669 (2014). In Kanjia, after the trial court found grounds for jurisdiction over the child on the basis of only the mother’s plea, the respondent-father was ordered to “comply with a parent-agency treatment plan[,]” and his parental rights were later terminated. Id. at 667. On appeal, the respondent-father argued that his due process rights were violated when his parental rights were terminated after never being adjudicated as unfit. Id. at 670. The Court of Appeals concluded that the respondent-father was “entitled to raise his Sanders challenge on direct appeal from the trial court’s order of termination, notwithstanding the fact that he never appealed the initial order of adjudication.” Id. at 670-671 (noting that under the facts of this case, “it would have been exceedingly difficult, if not effectively impossible, for [the] respondent[-father] to have challenged the trial court’s exercise of jurisdiction in a direct appeal from the order of adjudication” where he was never adjudicated, was not named as a respondent in the adjudication order, and he did not have an attorney at the time the trial court entered the order). See also In re Collier, 314 Mich App 558, 574-576 (2016) (“[the] respondent’s challenge to [his] adjudication was [not] an impermissible collateral attack” even though his appeal was not filed until after his parental rights were terminated; “[the] respondent never effectively received an adjudication regarding his fitness as a parent,” and he was therefore “‘entitled to raise his . . . challenge on direct appeal from the trial court’s order of termination, notwithstanding the fact that he never appealed the initial order of adjudication’”), quoting Kanjia, 308 Mich App at 671.

For additional information on filing an appeal with the Michigan Court of Appeals, see Section 20.3.

2.Wrongful Assumption of Jurisdiction

Where the trial court fails to “‘properly assume[] jurisdiction, all orders based on the wrongful assumption of jurisdiction are void ab initio.’” In re Long, 326 Mich App 455, 465 (2018) (“Because the trial court erred by exercising jurisdiction under MCL 712A.2(b)(2) and [MCL 712A.2(b)(6)], we reverse the trial court’s order terminating respondent-father’s parental rights.”), quoting Ryan v Ryan, 260 Mich App 315, 343 (2004).